Wexford Sci. & Tech., LLC v. Coltart Area Residents Ass'n

• Decision Date: 23 July 2021
• Docket Number: No. 694 C.D. 2020,694 C.D. 2020
• Citation: 260 A.3d 316
• Parties: WEXFORD SCIENCE AND TECHNOLOGY, LLC v. The CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENT Appeal of: Coltart Area Residents Association, South Oakland Neighborhood Group, Oakliffe Community Organization, Marjory Lake, Mark Oleniacz and Elena Zaitsoff
• Court: Pennsylvania Commonwealth Court

260 A.3d 316

WEXFORD SCIENCE AND TECHNOLOGY, LLC

v. The CITY OF PITTSBURGH ZONING BOARD OF ADJUSTMENTAppeal of: Coltart Area Residents Association, South Oakland Neighborhood Group, Oakliffe Community Organization, Marjory Lake, Mark Oleniacz and Elena Zaitsoff

No. 694 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued May 10, 2021

Decided July 23, 2021

Caroline A. Mitchell, Pittsburgh, for appellants.

Andrea Geraghty, Pittsburgh, for appellee Wexford Science and Technology, LLC.

Kyle J. Semroc, Pittsburgh, for appellee RLJ III HGN Pittsburgh, L.P.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE LEAVITT

Coltart Area Residents Association, Oakliffe Community Organization, South Oakland Neighborhood Group (Proposed Neighborhood Association Intervenors), and Marjory Lake, Mark Oleniacz, and Elena Zaitsoff (Proposed Individual Intervenors) (collectively, Proposed Intervenors) have appealed an order of the Court of Common Pleas of Allegheny County (trial court) that denied their petition to intervene in the zoning appeal of Wexford Science and Technology, LLC (Developer). There are two issues before this Court: (1) whether the trial court's denial of Proposed Intervenors’ intervention petition is an appealable collateral order under Pennsylvania Rule of Appellate Procedure 313, PA. R.A.P. 313, and (2) whether the trial court erred in denying the petition to intervene under Pennsylvania Rule of Civil Procedure 2329, PA. R.C.P. No. 2329. Upon review, we deny Developer's motion to quash the appeal. We further vacate the trial court's order denying the petition to intervene and remand the matter to the trial court for an evidentiary hearing on the petition to intervene.

Background

Developer owns three lots on Forbes Avenue (Property) located in the Oakland Public Realm Subdistrict-C Zoning District (OPR-C District) in the City of Pittsburgh. Developer proposes to demolish the existing 2-story building and construct a 13-story, 188.6-foot-tall building, with 9 floors of office and laboratory space, 3 floors of parking and 1 floor of retail uses on the ground floor (Project). The City Zoning Code¹ limits building height to 85 feet and regulates the ratio of building floor size to lot size in the OPR-C District. Because its Project did not meet the Zoning Code's dimensional requirements, Developer applied to the City Zoning Board of Adjustment (Zoning Board) for a variance as well as for a special exception.

Several neighbors and neighborhood associations intervened and presented testimony at the hearing before the Zoning Board. These included the Oakland Planning & Development Corporation (Oakland Planning Corporation), a registered community organization,² and Proposed Intervenors. Proposed Individual Intervenors intervened in their own right and as representatives of the Proposed Neighborhood Association Intervenors. After the hearing, the Zoning Board denied Developer's request for a variance and special exception.

On November 22, 2019, Developer appealed to the trial court. Developer served Proposed Intervenors and all parties that participated in the Zoning Board hearing. The City intervened as of right. On December 30, 2019, the Oakland Planning Corporation petitioned to intervene in the appeal, and the trial court granted its petition. On January 28, 2020, the parties that participated in the Zoning Board hearing attended a status conference with the trial court. Thereafter, on February 12, 2020, they attended a settlement conference convened by City Councilman Bruce Kraus.

On April 10, 2020, Proposed Intervenors petitioned to intervene in Developer's land use appeal. The petition averred that Proposed Intervenors learned from a newspaper article published on April 8, 2020, that the Oakland Planning Corporation was "backing a settlement deal" through which it would receive $500,000 from Developer. Certified Record (C.R.), Item 12, at 3, ¶7. Given this about-face by the Oakland Planning Corporation, Proposed Intervenors asserted that it no longer represented their interests. Their petition further averred that the City's position on the settlement proposal was "unknown" because the City's solicitor refused to state the City's position. Id . at 4-5, ¶¶10-11. Proposed Intervenors petitioned to intervene in order to defend the decision of the Zoning Board.

Developer opposed their intervention petition. Developer acknowledged that it was engaged in settlement negotiations with the Oakland Planning Corporation. It asserted, however, that Proposed Intervenors’ interests continued to be fully represented by the Oakland Planning Corporation, which was affiliated with all Proposed Neighborhood Association Intervenors. Developer argued that it did not follow from Proposed Intervenors’ disagreement with the litigation decisions of Oakland Planning Corporation that the Oakland Planning Corporation no longer represented the interests of Proposed Intervenors.

The trial court heard oral argument. Proposed Intervenors argued that the Project would adversely impact their homes and the neighborhood. They argued that Developer's proposal for 155 automobile parking spaces and 61 bicycle parking spaces in its 3-story garage was inadequate for the 700 occupants of the building. They also argued that on-street parking in the neighborhood has been oversubscribed and cannot accommodate "a project of this magnitude." Hearing Transcript, 6/9/2020, at 9, 11. Proposed Intervenors had believed that the Oakland Planning Corporation and the City would "vigorously defend" the decision of the Zoning Board and were surprised when Developer "cut a deal" with the Oakland Planning Corporation. Id . at 14, 16.

Developer countered that Proposed Intervenors were informed of the existence and substance of the settlement negotiations; waited too long to intervene; and were fully represented by the Oakland Planning Corporation, the only registered community organization to intervene timely in Developer's land use appeal.

Trial Court Decision

By order of June 10, 2020, the trial court denied Proposed Intervenors’ petition to intervene. Proposed Intervenors appealed to this Court. In its Rule 1925(a) opinion, PA. R.A.P. 1925(a), the trial court reasoned that Proposed Intervenors were served with notice of Developer's zoning appeal, and some of them attended the settlement conference on February 12, 2020. However, they unduly delayed the filing of an intervention petition until April 10, 2020, more than five months after the filing of Developer's land use appeal. To allow intervention at that point would be prejudicial because those parties that had promptly intervened in Developer's land use appeal were close to a settlement. The trial court also concluded that Proposed Intervenors’ interests were fully represented by the Oakland Planning Corporation, which is the only registered community organization for the neighborhood.

While Proposed Intervenors’ appeal of the trial court's denial of intervention was pending, Developer, the Oakland Planning Corporation, and the City entered into a settlement, in which Developer agreed to reduce the height of the Project to 153 feet, and the Oakland Planning Corporation and the City agreed to withdraw their appeals. On January 4, 2021, the trial court approved a consent order modifying the Zoning Board's decision to reduce the height of the building to 153 feet and subjecting the Project to comply with all other requirements of the Zoning Code. The trial court marked the underlying zoning appeal "[s]ettled and [d]iscontinued." Trial Court Consent Order, 1/4/2021, at 2; Supplemental Certified Record (S.C.R.), Item 2 at 2.

Appeal

On appeal,³ Proposed Intervenors present three issues for review, which we combine into two for clarity. First, they argue that the trial court's interlocutory order denying their intervention petition is appealable as a collateral order under PA. R.A.P. 313. Second, they argue that the trial court abused its discretion in denying their intervention petition under PA. R.C.P. No. 2329.

Developer filed a motion to quash Proposed Intervenors’ appeal for lack of jurisdiction, asserting that the trial court's interlocutory order is not appealable. This Court ordered the parties to address Developer's motion to quash in their briefs on the merits of Proposed Intervenors’ appeal.

I. Collateral Order

Proposed Intervenors argue that the trial court's order denying their petition to intervene is appealable as a collateral order under PA. R.A.P. 313. The intervention issue is separable from the main cause of action, i.e ., Developer's land use appeal.

Further, the land use rights at issue are too important to be denied review because the Project is incompatible with their residential neighborhood. In support, they cite Larock v. Sugarloaf Township Zoning Hearing Board , 740 A.2d 308 (Pa. Cmwlth. 1999). Proposed Intervenors contend that without this Court's immediate review of the trial court's order, their rights will be irreparably lost.

Developer counters that the property rights identified by Proposed Intervenors may give them standing, but they do not constitute rights too important to escape review. Even so, Proposed Intervenors’ rights have been fairly represented by the Oakland Planning Corporation, which Proposed Intervenors selected to act on their behalf and whose boundaries "not only include the Project, but also all of the [n]eighborhood [g]roups and [i]ndividual residences" at issue. Developer Brief at 15. Developer argues that Proposed Intervenors’ reliance on Larock is misplaced because Developer did not seek a use variance, as was the case in Larock , but, rather, a dimensional variance. Developer contends that neither the height of a building nor adequacy of on-street parking implicates rights deeply rooted in public policy.

We begin with a review of Pennsylvania Rule of Appellate Procedure 313, which...